This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.2011AP2864-CRAC

(L.C. No.

2011CF376)

STATE OF WISCONSIN:

IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant-Cross-Respondent-

Petitioner,

v.

Samuel Curtis Johnson, III,

Defendant-Respondent-Cross-Appellant.

FILED

MAR 26, 2014

Diane M. Fremgen

Clerk of Supreme Court

MOTION for reconsideration. Reconsideration
granted.

¶1PER CURIAM. On July 3, 2013, this court issued a
per curiam opinion in State v. Johnson, 2013 WI 59, 348 Wis.2d450, 832 N.W.2d609, which modified and
affirmed the unpublished decision of the court of appeals, State v. Johnson,
No. 2011AP2864-CRAC, unpublished slip op. (Wis. Ct. App. Apr. 18, 2012), and
remanded the matter to the circuit court for further proceedings.On July 22, 2013, both Johnson and the State
filed motions for reconsideration of the court's decision.Given the parties' motions, we acknowledge
the necessity of clarifying the previous per curiam.The court hereby grants Johnson's motion for
reconsideration in order to clarify that this court's previous per curiam
opinion represented a deadlock and should not be read as minority vote pooling.[1]Because this court has deadlocked, the court
of appeals decision must be affirmed.

¶2Specifically, no three justices reach agreement to either affirm,
reverse, or modify the decision of the court of appeals consistent with
precedent.Consequently, the court of
appeals decision remains the law of the case.SeePhillips v. U.S. Bank Nat'l Ass'n, 2010 WI 131, ¶¶1-2, 329 Wis.2d639, 791 N.W.2d190; Hornback v.
Archdiocese of Milwaukee, 2008 WI 98, ¶63, 313 Wis.2d294, 752 N.W.2d862; see also 6A
Jay E. Grenig, Wisconsin Practice Series: Appeal and Review § 55:18
(5th ed.).In light of the motion for
reconsideration and the fact that our previous per curiam left the parties and
the circuit court without sufficient guidance or ability to proceed consistent
with precedent, the court is now compelled to clarify that per curiam.

¶3Relevant to the case at issue, our conclusions are guided by
longstanding precedent.State v.
Green, 2002 WI 68, 253 Wis.2d356, 646 N.W.2d298; State v.
Shiffra, 175 Wis.2d600, 499 N.W.2d719 (Ct. App.
1993).To be clear, as a court of five
justices, we do not herein overturn or modify any precedent.Very simply stated, the court of appeals is
affirmed because no three justices conclude either (1) that under Shiffra,
the victim must produce the records if she is to testify, or (2) that under Green,
the victim need not produce the records in order to testify.

¶4In the case at issue, Shiffra and Green leave each
justice with any one of the above options, but precedent does not provide any
justice with the option to consider the production of medical records without
tethering that production determination to its impact upon whether the victim
may testify.Green, 253 Wis.2d356, ¶37; Shiffra, 175 Wis.2dat 612. Precedent instructs us that those
considerations are necessarily tethered together. Simply stated, Shiffra
and Green instruct us that an alleged victim may:

·Produce the medical records and then testify,

·Not produce the records and then not testify, or

·Not produce the records because the records are
not required to be produced, and nonetheless testify.

¶5Critically, our previous per curiam did not clearly state that the
court of appeals must be affirmed because no one of the above options were
accepted by any three justices.The
decision to produce and the consequence of whether testimony is allowed cannot
be separated.Green, 253 Wis.2d356, ¶37; Shiffra, 175 Wis.2d at 612.The prior per curiam was incorrect to convey
that a majority could be reached by separating whether the medical records must
be produced from whether the victim may testify because such a separation would
produce new criteria that a majority of the court has not authorized.

¶6We have been presented with a motion for reconsideration because
we failed to make clear that no three justices have chosen only one of the
options above.As a point of
clarification, we will briefly expound upon each justice's legal conclusions.

¶7In the case at issue, Justice Crooks concludes that Shiffra
is good law and if the victim will not produce her medical records, then she
cannot testify.Justice Crooks' position
is consistent with precedent.He would
affirm the decision of the court of appeals.

¶8Consistent with the precedent in Green, Justice Ziegler
concludes that the defendant did not make a sufficient showing to require an in
camera review.Thus, the victim need not
produce her records and she may nonetheless testify.Justice Ziegler would reverse the decision of
the court of appeals.

¶9Justice Roggensack similarly concludes that the victim need not
produce her medical records and that she may testify, but Justice Roggensack
would overrule Shiffra.Justice
Roggensack further concludes that, even if Shiffra is not overruled, the
requisite showing under Green has not been made so as to require the
victim to produce her records and that the victim may testify.Thus, Justice Roggensack would also reverse
the decision of the court of appeals.

¶10Chief Justice Abrahamson and Justice Bradley, however, do not adopt
any of the above Shiffra or Green analyses, nor would they
overrule Shiffra.Instead, Chief
Justice Abrahamson and Justice Bradley separate the decision to produce the
medical records from whether the victim is permitted to testify.They conclude that a majority can be reached
by taking a vote on each issue separately.We do not adopt this piecemeal approach, as it is inconsistent with
precedent.

¶11Stated differently, neither Chief Justice Abrahamson nor Justice
Bradley's conclusions accept any one of the following options available under
longstanding precedent: (1) the victim must produce her medical records, in
order to be allowed to testify under Shiffra; (2) if the victim refuses
to produce her medical records, then she is not allowed to testify under Shiffra;
and (3) if there is no showing so as to require the victim to produce her medical
records for in camera inspection, she may nonetheless testify under Green.

¶12Instead, Chief Justice Abrahamson and Justice Bradley would first
determine whether a victim must produce her records, and then make a separate
determination on whether she may testify, without accounting for the necessary
connection between the two considerations.The procedure espoused by Chief Justice Abrahamson and Justice Bradley
is a departure from common practice and precedent.Circuit courts and counsel have functioned
well using the Shiffra/Green analysis for many years, and we are
mindful not to inadvertently or unintentionally overturn that precedent in this
five-justice, per curiam opinion that has no majority.

¶13As a result, since a majority of the court has not reached
consensus under precedent so as to decide the issue presented and the court is
deadlocked, the decision of the court of appeals must be affirmed.

¶15ANN WALSH BRADLEY, J. (concurring in part and
dissenting in part).In granting
Johnson's motion for reconsideration, the per curiam purports to "clarify
that this court's previous per curiam opinion represented a deadlock."[2]Per curiam, ¶1; seealsoid., ¶13 ("the court is
deadlocked . . . ").It makes this contention despite the fact that the previous per curiam
was unanimous in its conclusion and direction to the circuit court.

¶16There was no deadlock.All
five justices sitting on the case unanimously concluded and directed that
"[u]pon remand, the circuit court may not require production of the
privately-held, privileged mental health records for in camera review. However, upon remand, the privilege-holder may
be called to testify in this case."State v. Johnson, 2013 WI 59, ¶9, 348 Wis. 2d 450, 832 N.W.2d 609.Additionally, the per curiam fails to explain
how an odd number of justices can be deadlocked.This case is not like the three-three split
cases cited by the per curiam.Per
curiam, ¶2.[3]

¶17The per curiam mistakenly concludes that Shiffra and Green
provide only three options regarding production of records and testimony of an
alleged victim.It concludes that only
three options exist because of its belief that "[t]he decision to produce
and the consequence of whether testimony is allowed cannot be
separated."Id., ¶5.This cribbed view incorrectly interprets Shiffra
as if the only remedy available for refusal to produce records is to suppress
the victim's testimony.

¶18This approach ignores the validity of a fourth option——the option which was
provided for in the previous per curiam, which was unanimous.

¶19Shiffra provides that there must be some remedy for a
refusal to produce records, but exclusion of the victim's testimony is not the
only possible remedy.The court in Shiffra
expressly contemplated that a variety of sanctions may be appropriate depending
on the circumstances.State v.
Shiffra, 175 Wis. 2d 600, 612, 499 N.W.2d 719 (Ct. App. 1993) ("The
only issue remaining is whether the trial court misused its discretion when it
suppressed Pamela's testimony as a sanction for her refusal to release the
records. In this situation, no other
sanction would be appropriate.The
court did not have the authority to hold Pamela in contempt . . . . An adjournment in this case would be of no benefit . . . .
Under the circumstances, the only method of protecting Shiffra's right
to a fair trial was to suppress Pamela's testimony if she refused to disclose
her records.")(Emphasis
added.)

¶20Indeed, this is the interpretation of Shiffra accorded by
its author.State v. Johnson, No.
2011AP2864-CRAC, unpublished slip op., ¶¶23-28
(Wis. Ct. App. Apr. 18, 2012) (Brown, C.J., dissenting).As he explained, Shiffra does not
necessarily require suppression of T.S.'s testimony in this case, despite the
refusal to release medical or counseling records.Id., ¶24.The central
focus of the rationale in Shiffra was the principle that "[w]hen
there are two competing and compelling societal interests, it is for the court
to balance these interests on a case-by-case basis.The courts are especially equipped for this
task.Indeed, it is what judges
do."Id., ¶27.

¶21The per curiam's citation to Shiffra and Green does
not show that the decision to produce and the suppression of testimony cannot
be separated.See per curiam, ¶¶4-5.In fact, the citation to Shiffra only
reinforces the point that suppression of testimony is but one of multiple possible
sanctions for a refusal to produce records.SeeShiffra, 175 Wis. 2d at 612.Likewise, Green does not support the
majority's contention.It does not even
address whether testimony should be allowed, but rather focuses on whether
Green had met his burden for obtaining in camera inspection of counseling
records by the court.State v. Green,
2002 WI 68, ¶37, 253
Wis. 2d 356, 646 N.W.2d
298.

¶22Turning to the motions for reconsideration, I would deny both
motions and address each in turn.

¶23The core of Johnson's motion for reconsideration is his claim that
this court's prior per curiam is invalid because it relies on minority
vote-pooling.Johnson argues that there
is no "majority-backed rationale for 'modifying' the court of appeals'
decision" and the "court of appeals' decision requiring suppression
of T.S.'s testimony must be affirmed."In support of this argument, he cites the rule that "a majority
must agree on some one specific ground of error fatal to the judgment, or the
judgment must be affirmed."SeeState v. Gustafson, 121 Wis. 2d 459, 461, 359 N.W.2d 920 (1985)
(footnote omitted); seealsoWill of McNaughton, 138 Wis.
179, 118 N.W. 997 (1909).

¶24Johnson's minority vote-pooling argument should be rejected for
multiple reasons.First, the rule is
inapplicable because this court's decision does not reverse a circuit court
judgment.As explained by the Gustafson
court, the McNaughton rationale for rejecting minority vote-pooling
focuses on the harm that "would result in reversals without
adequate guidance to the trial court upon a new hearing."121 Wis. 2d at 462 (emphasis added).Here, the prior per curiam did not reverse a
judgment.Rather, it affirmed the
circuit court's order allowing T.S. to testify.

¶25Additionally, the previous per curiam provided the guidance
envisioned by the McNaughton court.Justices Roggensack and Ziegler found Johnson has not shown an
entitlement to in camera review of the records, and thus no production was
required.Accordingly, T.S. may
testify.Chief Justice Abrahamson and I
found that Johnson had established a right to in camera review, and that the
circuit court was within its discretion to balance Johnson's right against
T.S.'s right to privacy.Accordingly,
T.S. may testify.While these are two
different paths to the same destination, they do not result in any risk of
confusion upon remand.Unlike the
situation in McNaughton, here the circuit court has guidance on the
proper course to follow: T.S. may testify.

¶26Second, this court's decision in Ives dictates that the rule
against minority vote-pooling does not apply in these circumstances.Ives v. Coopertools, 208 Wis. 2d 55,
559 N.W.2d 571 (1997).In Ives,
all six justices hearing the case decided that the court of appeals was wrong
to vacate the circuit court's order.One
group of three justices agreed on one rationale, and the other three justices
relied on different reasoning.The court
decided that the McNaughton rule did not apply because all justices
agreed on "the proper resolution of the contributory negligence
question" despite dividing on the rationale.Id. at 58.Here, similarly, four of the five justices
participating in the case agree with the circuit court that T.S. may testify,
despite dividing on the rationale.Following Ives, the rule against minority vote-pooling provides
no basis for reconsidering this court's prior per curiam, which was unanimous.

¶27 Furthermore, unlike here, the six justices sitting on the case in Ives
were split down the middle and there was no majority on any rationale.208 Wis. 2d at 57.Here, as the previous per curiam opinion
explained, "there is a majority regarding each issue presented," but
with varying rationales.Johnson,
348 Wis. 2d 450, ¶8.Three of the five justices sitting on the
case agreed that the circuit court could not order production of the records,
and four of the five justices concluded that T.S. may testify.To the extent the rationales diverge, that
simply goes to the precedential value of each justice's rationale, seeIves,
208 Wis. 2d at 57-58.It is not minority
vote-pooling.

¶28Johnson's final basis for seeking reconsideration is his argument
that the decision violates Wis. Const. art. I, § 9, because the court as a whole recognized that he
had a constitutional right to in camera review, but at the same time denied him
any remedy.This argument is without
merit.

¶29Johnson fails to appreciate the scope and history of the
"right to remedy" clause of Article I, § 9.[4]It has been interpreted in terms of existing
legal rights, and applies only where "an individual has an independent
legislatively-recognized right" or "common-law right to bring a cause
of action."Estate of Makos v.
Wiscosnin Masons Health Care Fund, 211 Wis. 2d 41, 62-63, 564 N.W.2d 662
(1997) (Crooks, J., concurring).[5]This definition cannot stretch to include
Johnson's alleged "right" in this case.Further, this court has explained that, based
on the history of the "right to remedy" clause, it is to be
understood as "primarily addressed to the right of persons to have access
to the courts and to obtain justice on the basis of the law as it in fact
exists."Mulder v.
Acme-Cleveland Corp., 95 Wis. 2d 173, 189, 290 N.W.2d 276 (1980).[6]This case does not involve any concern about
Johnson's access to the courts, nor does he allege as much.Accordingly, the "right to remedy"
clause provides no basis for reconsidering this court's decision.

¶30I examine next the State's motion for reconsideration.Essentially, the State seeks direction on
whether the circuit court's proposed remedy of a curative jury instruction is
permissible.Specifically, it asks the
court to reconsider or clarify "that portion of its decision regarding the
propriety of a special instruction allowing the jury to draw an inference
favorable to the defense from T.S.'s invocation of her statutory privilege
regarding her therapy records."The
prior per curiam did not discuss the jury instruction issue, but included a
footnote stating that Chief Justice Abrahamson and I both concluded that the
jury instruction here was impermissible.Johnson, 348 Wis. 2d 450, ¶4
n.4.

¶31Due to the previous per curiam's silence as to the position of the
other three participating justices on the curative instruction, the State is
concerned the decision could be read to mean that the instruction is
permissible.Technically, however, no
real clarification is needed.The
previous per curiam affirmed the court of appeals subject to modification, and
the court did not modify that part of the court of appeals' opinion that
rejected the curative instruction.As
such, the court of appeals' rationale and rejection of the proposed curative
instruction stands as the last word on the subject.State v. Johnson, No. 2011AP2864-CRAC,
unpublished slip op., ¶18
(Wis. Ct. App. Apr. 18, 2012).

¶32For the reasons set forth above, I respectfully concur in part and
dissent in part.

[1]The State's motion for
reconsideration related to a separate issue on jury instructions.The State's motion for reconsideration is
denied.

[2]
In its mandate of "Reconsideration granted," the per curiam appears
to depart from our normal procedure. In its text, the per curiam indicates that
it is "clarifying the previous per curiam."Per curiam, ¶1; seealsoid.
("in order to clarify . . . ."); ¶2 ("the court
is now compelled to clarify . . . ."); ¶6 ("As a point
of clarification . . ."). If the per curiam is truly
"clarifying" the previous per curiam, as it purports to do, then the
appropriate approach is to deny the motion and issue a clarification.See, e.g.,Industrial
Roofing Services, Inc. v. Marquardt, 2007 WI 62, ¶¶3, 4, 301 Wis. 2d 30,
731 N.W.2d 634 (denying the motion but writing further to clarify the
opinion); DaimlerChrysler v. LIRC, 2007 WI 40, 300
Wis. 2d 133, 729 N.W.2d 212 (denying the motion but writing
further to clarify the opinion); Metropolitan Ventures v. GEA Associates,
2007 WI 23, 299 Wis. 2d 174, 727 N.W.2d 502 (amending footnote
to "clarify our opinion to decide issues raised by the parties but not
decided by the court.").

Additionally, at the outset and in its mandate, the
per curiam refers to a sole motion for reconsideration ("Motion for
reconsideration.Reconsideration
granted.").In its first paragraph,
however, the per curiam notes that the State also filed a motion for
reconsideration, and denies that motion in a footnote, without any accompanying
discussion.Per curiam, ¶1, n.1.Accordingly, I concur in part and dissent in
part. I concur in the per curiam's footnote denial of the State's motion for
reconsideration, and dissent from its mandate, granting Johnson's motion for
reconsideration.

[3] To the extent that the per
curiam suggests that because we are sitting as a court with only five justices
that our opinions are not precedential, it is simply incorrect.

This
court can and has previously issued opinions with five sitting justices, in
which the justices were split 3-2 on individual issues.SeeIn re Disciplinary Proceedings
against Humphrey, 2012 WI 32, ¶97, 339 Wis. 2d 531, 811 N.W.2d 363
("That only five justices participate in a matter before this court is not
an everyday occurrence, but it is not an irregularity. A five-justice decision,
with two justices not participating after being given the opportunity to do so,
is valid."); seealsoState v. Braun, 100
Wis. 2d 77, 301 N.W.2d 180 (1981) (Abrahamson, J. and Heffernan,
J. dissenting; Callow, J. and Coffey, J. not participating); Wussow v.
Commercial Mechanisms, Inc., 97 Wis. 2d 136, 293 N.W.2d 897
(1980) (Coffey, J. and Hansen, J., dissenting; Abrahamson, J. and Steinmetz, J.
not participating).

[4]"Every
person is entitled to a certain remedy in the laws for all injuries, or wrongs
which he may receive in his person, property, or character; he ought to obtain
justice freely, and without being obliged to purchase it, completely and
without denial, promptly and without delay, conformably to the laws."Wis. Const. art. I, § 9.

[6] Similarly, other decisions have recognized that the
"right to remedy" clause originated out of concern that citizens
should have access to the courts to remedy existing legal rights, as to a
medical malpractice action, and should not have to bribe public officials in order
to obtain access to courts.Aicher,
237 Wis. 2d 99, ¶¶41-44; James A.O. v. George C.B., 182 Wis. 2d 166,
175, 513 N.W.2d 410 (Ct. App. 1994).